M.Mallikarjuna S/O Savarappa vs The State Of Karnataka
2023 Latest Caselaw 4676 Kant

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                                                                 CRL.A No. 100023 of 2014



                                        IN THE HIGH COURT OF KARNATAKA

                                                DHARWAD BENCH

                                      DATED THIS THE 20TH DAY OF JULY, 2023

                                                        BEFORE

                                      THE HON'BLE MR JUSTICE ANIL B KATTI

                                       CRIMINAL APPEAL NO. 100023 OF 2014
                             BETWEEN:

                             M.MALLIKARJUNA S/O SAVARAPPA,
                             AGE: 21 YEARS,
                             R/O: NEAR YALLAMMA SCHOOL,
                             BAYPASS ROAD, SIRUGUPPA,
                             BELLARY DIST.
                                                                             ...APPELLANT
                             (BY SHRI J. BASAVARAJ, ADVOCATE)
          Digitally signed
          by
                             AND:
          ANNAPURNA
ANNAPURNA CHINNAPPA
CHINNAPPA DANDAGAL           THE STATE OF KARNATAKA
DANDAGAL  Date:
          2023.07.21         REPRESENTED BY ITS
          12:40:17 -0700
                             STATE PUBLIC PROSECUTOR,
                             HIGH COURT OF KARNATAKA
                             BENCH AT DHARWAD.
                                                                           ...RESPONDENT
                             (BY SHRI M.H.PATIL, AGA)

                                                       ***
                                  THIS CRIMINAL APPEAL IS FILED U/S 374(2) OF CR.P.C.
                             SEEKING TO CALL FOR THE RECORDS PASSED BY THE PRL.
                             SESSIONS JUDGE, BELLARY IN S.C.NO.30/2012, PERUSE THE
                             SAME, ALLOW THIS APPEAL, SET ASIDE THE CONVICTION
                             DATED 3.1.2014 AND SENTENCE DATED 7.1.2014 AND ACQUIT
                             THE APPELLANT & SET THE APPELLANT AT LIBERTY.

                                  THIS CRIMINAL APPEAL COMING ON FOR FINAL HEARING
                             AND THE SAME HAVING BEEN HEARD AND RESERVED FOR
                             JUDGMENT ON 29.03.2023, THIS DAY, THE COURT, DELIVERED
                             THE FOLLOWING:
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                                            CRL.A No. 100023 of 2014




                              JUDGMENT

Appellant/accused feeling aggrieved by judgment of the

first appellate Court on the file Prl. District and Sessions Judge,

Ballari in SC.No.30/2012, dated 3.1.2014, preferred this

appeal.

2. Parties to the appeal are referred with their ranks as

assigned in the trial Court for the sake of convenience.

3. The factual matrix leading to the case of

prosecution can be stated in nutshell to the effect that daughter

of complainant Ambika was given in marriage to one Nagaraj

about one and half months back. She had come to Shiraguppa

for attending paternal aunt marriage. On 5.7.2010, she was

preparing to go back to her place of husband. The accused who

was in love with Ambika earlier to the marriage, on the road in

front of house of complainant abetted her to accompany him

otherwise to go and die, thereafter dragged her by holding

hand. On account of such humiliation suffered by Ambika, she

went inside the house and by pouring kerosene set herself

ablaze and suffered burn injuries. Thereafter, she was

immediately shifted to VIMS hospital, Ballari and while she was

under treatment succumbed to burn injuries sustained in the

CRL.A No. 100023 of 2014

incident on 17.7.2010. The prosecution alleges that deceased

Ambika on account of abetment and mental harassment of

accused committed suicide in the house. On these allegations

made in complaint, investigating officer carried out

investigation and filed charge sheet.

4. In response to summons, accused has appeared

through counsel. The trial Court on being prima facie satisfied,

framed charge against the accused for the offence punishable

under Section 306 of IPC. Accused pleaded not guilty and

claimed to be tried. Prosecution to prove the allegations made

against the accused, relied on the evidence of PWs.1 to 13 and

documents at Exs.P.1 to 15.

5. On closure of Prosecution evidence, statement of

accused under Section 313 of Cr.P.C. came to be recorded.

Accused denied all incriminating material evidence appearing

against him and claimed that false case is filed. The trial Court

after appreciation of evidence on record, convicted accused for

the offence punishable under Section 306 of IPC and imposed

sentence as per order of sentence.

6. Appellant/Accused challenged the said judgment of

conviction and order of sentence in the present appeal

CRL.A No. 100023 of 2014

contending that material witnesses of the prosecution have

turned hostile and virtually there is no evidence on record to

prove that accused has abetted Ambika, due to which she

committed suicide. The dying declaration recorded by P.W.11

as per Ex.P.13 and the fitness certificate issued by P.W.13 and

the manner in which it has been recorded creates serious doubt

and the same is unreliable to prove the guilt against accused.

The parents of the deceased Ambika i.e. P.Ws.1 and 4 never

complained before anybody that accused was harassing

deceased Ambika even after her marriage. The evidence of

husband of deceased Ambika P.W.9 also does not speak about

any harassment of accused. Therefore, in the absence of any

cogent evidence on record, conviction of accused on the

strength of dying declaration as per Ex.P.13 cannot be legally

sustained. The approach and appreciation of oral and

documentary evidence on record is contrary to law and

evidence on record. Therefore, prayed for allowing appeal and

to set aside the judgment of the trial Court. Consequently to

acquit the accused.

7. In response to notice, learned HCGP appeared for

respondent/State.

CRL.A No. 100023 of 2014

8. Heard the arguments of both sides.

9. On careful perusal of oral and documentary

evidence placed on record, it would go to show that deceased

Ambika was daughter of P.W.1 Nagaveni and P.W.4 Chidanand.

Accused was in love with deceased Ambika, further the parent

of deceased Ambika performed her marriage with P.W.9

K.Nagaraj, who is brother of complainant P.W.1 about one and

half months prior to the incident. On 5.7.2010, Ambika in the

house of complainant-P.W.1 got herself poured kerosene and

set ablaze, due to which she suffered burn injuries. Thereafter,

immediately she was shifted to VIMS hospital, Ballari and while

she was under treatment succumbed to burn injuries on

17.7.2010 at 3.00 p.m. The P.M. report marked with consent

Ex.P.11 would go to show that death of deceased Ambika is due

to septicemia as a result of burn injuries sustained. These facts

are not disputed by defence and the same also can be born out

from the material evidence placed on record by prosecution.

Therefore, it is evident that deceased Ambika committed

suicide in the house of P.W.1 by herself pouring kerosene and

set ablaze. The prosecution alleges that deceased Ambika

committed suicide due to abetment caused by accused. The

evidence of prosecution witnesses has to be re-appreciated so

CRL.A No. 100023 of 2014

as to decided whether the trial Court was justified in holding

that accused guilty for offence under Section 306 of IPC.

10. The evidence of material witnesses P.W.1 Nagaveni

and P.W.4 Chidanand, who are parents of deceased Ambika,

P.W.5 grand mother Ambamma, would go to show that

deceased Ambika was having stomach pain, due to which she

committed suicide. The theory of stomach pain of deceased

Abmika was cause for her to commit suicide has been rejected

by the trial Court for want of required evidence to substantiate

the said fact. P.W.1 in her cross examination while answering

court question has deposed to the effect that deceased Ambika

was suffering from stomach pain for 4 to 5 years and she was

taken for treatment in the Government hospital on many times

and doctor in the Government hospital has given treatment.

However, no any document has been produced to show that

deceased Ambika was having stomach pain to support the

evidence of P.W.1. Similarly, evidence of P.W.4 Chidananda

father of victim, P.W.5 grand mother Ambamma and P.W.9

K.Nagaraj have deposed to the effect that deceased Ambika

was having stomach pain, due to which she committed suicide,

however, no any peace of document has been produced to

substantiate the fact that deceased Ambika was suffering from

CRL.A No. 100023 of 2014

stomach pain and due to which, she committed suicide. If at all

deceased Ambika was to commit suicide, due to her stomach

pain, who was suffering for the last 4-5 years, she could not

have waited till 5.7.2010. It is pertinent to note that accused

has not made any such defence that deceased Ambika was

suffering from stomach pain. Indisputably, according to

complaint allegations Ex.P.1, accused was in love with

deceased Ambika, both of them have gone to Siddaganga and

the said fact can also be born out from the evidence of above

referred witnesses that accused and deceased both had gone to

Siddaganga and they were brought back to the house.

Thereafter, Ambika was given in marriage to brother of P.W.1

i.e. P.W.9-K.Nagaraj. Therefore, the trial Court has rightly

rejected the evidence of above referred witnesses that Ambika

committed suicide in the house of P.W.1 due to stomach pain.

11. It is true that material witnesses P.W.1 Nagaveni

and P.W.4 Chidananda, who are parents of deceased Ambika,

P.W.5 grand mother Ambamma, P.W.7 Mareppa, P.W.9

K.Nagaraj have not supported to the case of prosecution. The

evidence of material witnesses and complaint allegations Ex.P.1

would speak to the effect that accused was in love with Ambika

and both of them had gone to Siddaganga and they were

CRL.A No. 100023 of 2014

brought back to home and cautioned the accused. Thereafter,

marriage of deceased Abmika was performed with P.W.9-

K.Nagaraj, who is brother of P.W.1. The deceased Ambika

committed suicide in the house of her parents P.Ws.1 and 4, by

pouring kerosene and got herself set ablaze and she died due

to burn injuries while she was under treatment in VIMS

hospital, Ballari on 17.7.2010. In the backdrop of the above

facts, the alleged abetment said to have been caused by

accused is the cause for Ambika to commit suicide has to be

appreciated on the strength of evidence placed on record by

the prosecution.

12. The complaint allegations Ex.P.1 would speak to the

effect that accused is alleged to have said deceased Ambika

"HjUÉ ºÉÆÃUÀ¨ÉÃqÁ £À£Àß eÉÆvÉ ¨Á". The brother-in-law of

complainant Mareppa questioned accused calling Ambika and

there was altercation between them. P.W.1 Nagaveni and

P.W.5 Ambamma pacified the quarrel. The deceased Ambika

immediately went inside the house, on hearing hue and cry of

Ambika from the house, they rushed to the spot and found that

Ambika got herself set ablaze by pouring kerosene. On

extinguishing the fire, she was shifted to VIMS Hospital, Ballari

CRL.A No. 100023 of 2014

for treatment. On enquiry with Ambika, she revealed that due

to harassment of accused on account of earlier affair, she was

having an apprehension of the said fact being made known to

her husband, got herself ablaze in the house.

13. In order to attract penal action in terms of Section

306 of IPC, abetment of suicide is condition precedent. The

legal requirements to prove abetment in terms of Section 107

of IPC are as under:

107. Abetment of a thing.--A person abets the doing of a thing, who--

First. -- Instigates any person to do that thing; or

Secondly. --Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or

Thirdly. -- Intentionally aids, by any act or illegal omission, the doing of that thing.

Explanation 1.--A person who, by willful misrepresentation, or by willful concealment of a material fact which he is bound to disclose, voluntarily causes or procures, or attempts to cause or procure,

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CRL.A No. 100023 of 2014

a thing to be done, is said to instigate the doing of that thing.

The offence of abetment by instigation depends upon the

intention of the person, who abets and not upon the act which

is done by person, who has been abetted. Abetment may be by

instigation, conspiracy or interventional aid as provided under

Section 107 of the Code.

14. In the present case, prosecution to prove the

abetment referred above, mainly relies on evidence of P.W.11

Dr.N.R.Geetha, who has recorded dying declaration as per

Ex.P.13, in view of fact that other material witnesses have not

supported to the case of prosecution. P.W.11 has deposed to

the effect that on 6.7.2010, she received requisition at 12.45

p.m from PSI, Shiraguppa for recording dying declaration of

victim at medical hospital, Shiraguppa. She went to hospital

and met Ambika along with Dr.Narendra, who has certified that

injured Ambika is in a fit condition to give statement. The

answer given by the injured to the question has been recorded

by P.W.11 as per Ex.P.13 and in Ex.P.13 itself Dr.Narendra

P.W.13 has given fitness certificate and admits his signature as

Ex.P.13(C). The answer given by the injured at column No.16

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CRL.A No. 100023 of 2014

as to how she suffered burn injuries is material and reads as

under:

"ªÀÄ°èPÁ @ ªÀÄ°èPÁdÄð£À ºÀÄqÀÄUÀ PÉÆqÀÄwÛzÀÝ QgÀÄPÀļÀ¢AzÁV dÄUÀÄ¥ÉìAiÀiÁV ¸ÁAiÀÄĪÀ GzÉÝñÀ¢AzÀ ¸ÀévÀB ªÉÄʪÉÄÃ-É ¹ÃªÉÄJuÉÚ ¸ÀÄjzÀÄPÉÆAqÀÄ, ¨ÉAQ ºÀaÑPÉÆArzÀÝjAzÀ UÁAiÀÄUÀ¼ÁVgÀÄvÀÛªÉ, "

15. On going through narration of the injured as to how

she suffered burn injuries and cause for the same, further the

answer given to other questions in the dying declaration would

go to show that injured was in fit condition to give statement

and capable of understanding the question put to her and then

given answer. The learned defence counsel contended that time

gap between the incident and in recording dying declaration,

further fitness certificate was not obtained prior to recording of

dying declaration and the same would render dying declaration

invalid and the same cannot be relied.

16. Learned counsel for appellant relied on the

judgment of the Hon'ble Apex Court in Sultan V/s. State of

U.P. reported in 2022 AIAR (Criminal) 966, wherein it has

been observed and held that:

"Section 32 of the Evidence Act, 1872, which makes dying declaration admissible, is

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CRL.A No. 100023 of 2014

an exception to general rule of here say evidence. While in terms of Section 32, dying declarations are admissible, but the weight and evidencary value to be attached to the dying declaration would depend upon the facts of each case. In cases where dying declaration is reliable and inspires confidence as to its correctness, being substantive piece of evidence, the dying declaration can form basis of conviction. There are cases where there are reasons and grounds to accept veracity of statement, coupled with the factor that a person who is on death bed is not likely to falsely implicate an innocent person. However, the Court, when in doubt as to the veracity or correctness, can and should seek corroboration, keeping in mind the fact that the accused have not chance of cross examination. Further it is necessary to guard and ensure that the statement made by the deceased is not a result of tutoring, prompting or imagination."

17. Learned counsel also relied on the another

judgment of the Hon'ble Apex Court in Jayamma and another

V/s. State of Karnataka, reported in (2021) 6 SCC 213,

wherein it has been observed and held that a dying declaration

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CRL.A No. 100023 of 2014

which suffers from infirmity cannot form the basis of conviction.

In view of the principles enunciated in both the aforementioned

judgments of the Hon'ble Apex Court, it is evident that if the

dying declaration inspires confidence of the Court about

truthfulness of statement made by deceased then the same can

be basis for conviction of accused. However, the Court while

appreciating the truthfulness of dying declaration must be

satisfied that the statement made by deceased is not a result of

tutoring, prompting or imagination and truthfulness of

declaration made by deceased are to be taken into

consideration before relying on the dying declaration.

18. Learned counsel for appellant argued that on the

face of it, alleged say of accused "HjUÉ ºÉÆÃUÀ¨ÉÃqÁ £À£Àß eÉÆvÉ

¨Á" does not amount to instigation or intentional aid on the

part of the accused for proving offence under Section 306 of

IPC. In support of such contention, reliance is placed on the

judgment of Hon'ble Apex Court in Kashibai and other V/s.

State of Karnataka, reported in 2023 livelaw (SC) 149,

wherein it has been observed and held that:

"Sections 306 and 107 of IPC have to be established in order to convict a person for

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CRL.A No. 100023 of 2014

the offence under Section 306 IPC, the basic constituents of the offence namely where the death was suicidal and whether there was an abetment on the part of the accused as contemplated in Section 107 IPC have to be established. In order to bring the case within the purview of 'Abetment' under Section 107 IPC, there has to be an evidence with regard to the instigation, conspiracy or intentional aid on the part of the accused. For the purpose proving the charge under Section 306 IPC, also there has to be an evidence with regard to the positive act on the part of the accused to instigate or aid to drive a person to commit suicide. "

19. Learned counsel for appellant also places reliance

on another judgment of Hon'ble Apex Court in Mariano Anto

Bruno and another V/s The Inspector of Police, reported

in 2022 Livelaw (SC) 834, wherein it has been observed and

held that:

"Section 306 of IPC in cases of alleged abetment of suicide, there must be proof of direct or indirect acts of incitement to the commission of suicide. Merely on the allegation of harassment without their being any positive action proximate to the time of

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CRL.A No. 100023 of 2014

occurrence on the part of the accused which led or compelled the person to commit suicide, conviction in terms of Section 306 of IPC is not sustainable."

Keeping in mind the principles enunciated in aforementioned

two judgments of Hon'be Apex Court, it is evident that there

has to be evidence with regard to instigation, conspiracy or

intentional aid on the part of the accused. For the purpose of

proving charges under Section 306 of IPC also there has to be

an evidence with regard to the positive act on the part of the

accused to instigate or aid to drive a person to commit suicide.

20. In the present case, at the first instance,

complainant only states about accused having abetted by

saying "HjUÉ ºÉÆÃUÀ¨ÉÃqÁ £À£Àß eÉÆvÉ ¨Á". The specific assertion in

the complaint Ex.P.1 would go to show that deceased Ambika

on being questioned by P.W.1 revealed that due to harassment

of accused and being afraid of her husband, she committed

suicide. However, the evidence of material witnesses P.Ws.1, 4,

5 and 7 is silent of accused harassing victim Ambika.

21. If the alleged apprehension of deceased Ambika

referred in the complaint is appreciated with the above referred

background then it is difficult to believe that even after accused

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CRL.A No. 100023 of 2014

being cautioned continued to harass Ambika even after the

marriage or at any point of time, till the date of filing the

complaint in the absence of any reliable evidence to prove the

said fact. The deceased Ambika did never complain either

before her parents or any relatives that accused continued to

harass even after being cautioned. Therefore, in the absence of

such evidence on record and looking to the time gap between

the date from when they were brought from Siddaganga till

date of recording dying declaration, the deceased has never

complained about the alleged incident of harassment of

accused at least to her parents will create serious doubt about

allege harassment of accused being cause for Ambika to

commit suicide. Therefore, uncorroborated statement of

deceased while answering to question No.16 of dying

declaration Ex.P.13 that she being fed up about harassment of

accused, committed suicide is without there being any

instigation or intentional aid on the part of accused cannot be

accepted as sufficient evidence to prove the charge under

Section 306 of IPC. The trial Court has not considered the

earlier affair of accused and the deceased Ambika, they having

gone together to Siddaganga, they were brought back to village

by the parents, then Kavitha was given in marriage to P.W.6

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K.Nagaraj, deceased Ambika never complained in between the

period to her parents or relatives about harassment of accused

before relying on the statement of deceased Ambika in dying

declaration Ex.P.13.

22. The trial Court only on the basis of uncorroborated

statement of deceased Ambika in dying declaration Ex.P.13 has

proceeded to hold that prosecution has proved the guilt of the

accused beyond all reasonable doubt for the offence punishable

under Section 306 of IPC. Therefore, finding recorded by the

trial Court in holding the accused guilty and convicting the

accused for the offence punishable under Section 306 of IPC in

view of the above said reasons cannot be sustained. Hence,

interference of this Court is required. Consequently, proceed to

pass the following:

ORDER

Appeal filed by appellant/accused is hereby allowed.

The judgment of the First Appellate Court on the file of

Prl. District and Sessions Judge, Ballari in SC.No.30/2012,

dated 3.1.2014 is hereby set aside.

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CRL.A No. 100023 of 2014

Appellant/accused is acquitted for the offence punishable

under Section 306 of IPC.

The bail bond of accused and that of his surety shall

stand discharged.

The fine amount if any is deposited, the same is ordered

to be refunded to appellant/accused.

The registry is directed to transmit the records with the

copy of this judgment to trial Court.

(Sd/-) JUDGE

Vb/-